Your HR and Payroll compliance and policy solution! Comply with federal, state, and international laws, find answers to your most challenging questions, get timely updates with email alerts, and more with our suite of products.

Oct. 12 — Recent jury verdicts in amusement park ride litigation, ranging from $0 up to $2 million,
play an important role by providing exemplars for future industry liability.

For a serious accident, like the one involving a boy who died on a waterslide at Schlitterbahn
water park in August, “if liability is proved, damages should be in the multi-million
dollar range,” Professor Christopher J. Robinette of the Widener University Commonwealth
Law School in Harrisburg, Pa., told Bloomberg BNA.

Plaintiffs’ attorney Robert A. Clifford, founder and senior partner at Clifford Law
Offices in Chicago, told Bloomberg BNA that his firm has settled several amusement
park cases confidentially for sums ranging from several hundred thousand dollars to
$2 million, depending upon the gravity of injuries.

But most suits stemming from serious injuries result in confidential settlements,
an outcome favored by media shy theme parks.

Settlement is often favored because it doesn’t come with an admission of any liability,
Professor James Kozlowksi of George Mason University’s School of Recreation, Health,
and Tourism in Manassas, Va., told Bloomberg BNA.

It’s “simply a business decision to avoid the significant cost and uncertainty associated
with litigation,” he said.

On the higher end are a $1.5 million award in a roller coaster case involving a plaintiff
with a neck injury (
Noone v. City of New York &
Astroland Kiddie
Park, Inc., N.Y. Sup. Ct., 2015). In addition, the plaintiffs’ law firm Cellino &
Barnes reported a plaintiff’s verdict of $4 million in a roller coaster accident case
that ultimately resulted in a $2.85 million settlement (
Dwaileebe v. Six Flags Darien Lake, 801 N.Y.S.2d 172 (2006)).

In
Dwaileebe, the plaintiff suffered permanent injuries after being ejected from the Superman
rollercoaster ride at Six Flags Darien Lake in Darien, N.Y.

Although verdicts provide exemplars, “most claims are settled, rather than litigated,”
Robinette said.

And usually at the “11th hour,”
Clifford added.

Michael Talve, managing director of The Expert Institute in New York, which helps
litigators find expert witnesses, also said most of the amusement park cases he sees
result in a settlement.

It’s “unusual for an amusement park operator to allow such a case to drag on in the
public domain. Their insurance carriers usually prepare for this,”
Talve told Bloomberg BNA.

Most plaintiffs also prefer settlements because they don’t want to re-live their experience
in a courtroom setting, Clifford said.

So, if the settlement amount is “fair with the guarantee of getting the damages check
within 30 or 60 days, then it is appropriate to settle to avoid a costly trial and
perhaps even an appeal,” he said.

Settlements may be good for injured plaintiffs and media shy defendants, but Clifford
saw risks to the public when recurring dangers are obscured through confidentiality
agreements.

When these lawsuits are settled for a confidential amount the “real risks of amusement
parks is never really known by the public,” he said.

Standard of Care Crucial

Although many litigants anticipate a settlement, they prepare for trials.

In most injury lawsuits that advance, plaintiffs must successfully link their harm
to the defendant’s violation of a standard of care.

Litigation over amusement park rides is no different, but it comes with its own set
of twists and turns.

The applicable legal standard of care is not only significant, but conclusive in determining
liability in amusement park ride cases, Kozlowksi said.

These standards ‘‘provide a yardstick against which an actor’s behavior or decision-making
can be measured,’’ plaintiffs’ attorney Daniel G. Kagan, with Berman & Simmons in
Lewiston, Maine, told Bloomberg BNA.

But such standards are rare for theme parks and/or carnival rides, Kozlowski said.
If they exist at all, they’re “the exception, rather than the rule, within a thin
patchwork of state and local law,” he said.

In the absence of a legislated mandatory safety standard, the applicable legal standard
will arise from the generally accepted customs, practices, and usages within an industry
or community, like amusement park “thrill”
rides, Kozlowski said.

That means the standard of care is largely being determined by the same courtroom
experts who testify in injury cases, Talve said.

In addition to their litigation work, these experts “sit on boards for relevant trade
associations,” like the International Association of Amusement Parks and Attractions,
“they publish and lecture on the topic of amusement park safety, and collectively
they’re establishing industry norms and safety standards that most operators will
adhere to,” Talve said.

Differing Standards Confuse Jurors

When negligence is alleged in a typical amusement park ride case, most courts ask
whether the defendant acted reasonably under the circumstances, Robinette said.

But some jurisdictions use a heightened “extraordinary care” standard for common carriers,
Robinette said.

The common carrier standard is “much harder” for a defendant to prove compliance with
because it requires a showing that it it took extraordinary, rather than ordinary,
care, he said.

In a midway or carnival ride case, the standard of care might examine how best to
disassemble/reassemble a ride, how often the ride should be inspected, what that inspection
entails, how often to replace worn parts, and with what, Kagan said.

But rules and standards are only helpful if the description that jurors are told makes
sense to the “normal, everyday human beings who give their valuable time to serve
as jurors,” Kagan said.

Whether the amusement park owes a patron the “highest duty of care” or a lesser “reasonable
duty of care” may be paramount to litigators, but the distinctions often make little
difference to juries, according to defense attorney Jordan Lipp, a patner at Davis,
Graham & Stubbs in Denver.

Judges are the ones who examine the standard of care most closely, Lipp told Bloomberg
BNA
.

In states that have higher duties of care, that makes it “harder for defendants to
win on the motions, but not necessarily harder to win in front of a jury,”
Lipp said.

Another concern is that the standard of care is often a “moving target,” according
to defense attorney Michael J. LeVangie, with the LeVangie Law Group in Sacramento,
Calif.

In 2005 the California Supreme Court held that operators of roller coasters and similar
rides should be treated like common carriers, in
Gomez v. California, 35 Cal. 4th 1125 (2005), he said.

But the standard is different for driver-operated bumper cars, a distinction that
parties “often”
misunderstand, LeVangie told Bloomberg BNA.

And some states, such as Illinois, have used state laws to require that ride operators
meet the heightened standard of care demanded of common carriers, Clifford said.

Costly Expert Witnesses Essential

In complex lawsuits involving amusement park rides, one or more seasoned expert witnesses
will be needed to “present and explain highly technical aspects of engineering, inspection
and maintenance,”
Kagan said.

“Given the mechanical nature of these rides and the physics of a given accident, these
cases usually require expert witnesses with an engineering degree, and particular
experience and expertise in biomechanical engineering and/or human factors analysis,”
Kozlowski added.

Experts are needed to tell juries what measures “could have or should have been taken
to avoid the plaintiff’s injuries or even death,” Clifford said.

Often, “additional protection or restraint for riders’ necks, back, feet or hands”
might “amount to a relatively minimal amount of money that could save people’s limbs
or lives,” he said.

Experts also address the appropriate standard of care, the propriety of the operator’s
actions, and the design and warnings of the ride, Lipp said.

And where injuries are serious, damage experts, like doctors, life care planners and
vocational rehabilitation specialists, are often utilized by the parties, he said.

Experts are needed even where negligence seems obvious on its face—such as for a machine
that was continuously used for 100 hours without inspection even though it should
have been inspected every five hours, Kagan said.

In such cases an expert must explain why it was important to maintain inspection frequency,
he said.

Litigators don’t necessarily need a midway ride-specific expert, because the themes
of maintenance, upgrades and inspections are common to all matters involving complex
machinery, he said.

‘‘An individual juror may never ride on a roller coaster, but she probably has used
an elevator—both create serious risk of harm or death if maintenance, upgrades and
inspections are ignored,’’ he said.

Talve said the expert witnesses he looks for must be specialists in the areas of design
and installation.

“Many of these experts own and operate ride manufacturing companies or amusement park
outfits. Others have previously owned or operated such entities, and now spend their
time consulting on safety guidelines,” he said.

The stakes couldn’t be higher.

“Some of these installations cost tens of millions of dollars. And the rides are meant
to be flagship draws for the parks that construct them, as well as major revenue generators,”
Talve said.

But retaining a credentialed expert isn’t enough. The expert must also withstand intense
judicial scrutiny.

If a plaintiff’s expert is disqualified under the rigorous judicial standards for
evaluating expert evidence “the case is over,” Robinette said.

Defendants Win More Often

LeVangie said “95 percent of all civil litigation resolves prior to trial and theme
park accident cases are no different.”

Some cases might be subject to dismissal on the basis of a release or indemnification
agreement.

Sometimes the parties have to ask the judge to decide if the waiver or release applies.
‘‘That is true in many states,’’ LeVangie said.

Kagan says he doesn’t generally see outright dismissals in park ride injury cases
because most plaintiffs’ attorneys are diligent in conducting their own investigations
before proceeding with a suit.

But LeVangie said there is a “greater likelihood of a defense verdict in amusement
and recreation liability matters” than in other types of civil litigation.

“Defenses based upon express waivers and assumption of risk greatly enhance the potential
of a defense judgment or dismissal in these cases when compared to traditional injury
litigation,” he said.

Robinette, the law professor who follows amusement park ride cases, says that as with
“medical malpractice cases, defendants appear to win the vast majority of those that
go to trial.”

Kozlowski agreed, saying that in recreational injury cases, liability is the exception,
rather than the rule.

To contact the reporter on this story: Bruce Kaufman in Washington at
bkaufman@bna.com

All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to books@bna.com.

Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)

Notify me when updates are available (No standing order will be created).

This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to research@bna.com.

Put me on standing order

Notify me when new releases are available (no standing order will be created)